Crown Land Management Act 2016

The Minister may, by instrument lodged with the Registrar-General, create any of the following easements (a special easement) over land within the Western Division that, in the Minister’s opinion, is being used as a road or track—

an easement in the nature of a right of way,

any other easements as are appropriate to the construction and maintenance of a right of way.

An instrument for creating a special easement—

cannot be lodged with respect to freehold land, and

must specify the beneficiary of the easement or the land to which the benefit of the easement is appurtenant.

An instrument lodged under this clause is to be made by reference to a plan that is registered or recorded under Division 3 of Part 23 of the Conveyancing Act 1919.

On receiving an instrument lodged under this clause, the Registrar-General may record any particulars of the creation of the special easement as the Registrar-General considers necessary in any folio of the Register relating to land which, in the Registrar-General’s opinion, is affected by the creation of the easement.

No duty is payable under the Duties Act 1997 in respect of an instrument lodged under this clause.

Sections 88A and 181A of the Conveyancing Act 1919 apply to an instrument lodged under this clause.

An easement referred to in section 88A of the Conveyancing Act 1919 may be created not only in favour of a public authority referred to in that section, but also in favour of any other persons or bodies as may be specified in that regard by the plan referred to in subclause (3). In that case, any reference in section 88A of the Conveyancing Act 1919 to a public authority extends to any person or body specified.

As soon as practicable after a special easement is created, the Minister must cause notice of that fact to be given to—

each beneficiary of the easement, and

each lessee of land over which the easement is in force.

Section 89 of the Conveyancing Act 1919 does not apply to a special easement.

Neither the creation of a special easement in respect of any land held under a lease, nor a lessee’s request for the creation of a special easement in respect of any such land, is to be regarded—

as a breach of any contractual provision prohibiting, restricting or regulating the lessee’s right to deal with the land, or

as giving rise to any remedy by a party to any legal instrument, or as causing or permitting the termination of any legal instrument, because of the creation of the easement or the making of the request.

This clause applies to land under a Western lands lease granted or issued before 1 December 2002 (which is when section 35S of the former Western Lands Act 1901 commenced), but does not apply to a lease granted on or after that date.